Wilbert Joseph Levier and Rose Richard Levier v. Jeff Davis Bancshares, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-472

WILBERT JOSEPH LEVIER AND ROSE RICHARD LEVIER

VERSUS

JEFF DAVIS BANCSHARES, INC.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 16-C-3007-A
HONORABLE JAMES P. DOHERTY, JR., DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar,
Judges.

AFFIRMED.

Steven J. Diebold
Diebold Law Firm, LLC
Post Office Box 51836
Lafayette, Louisiana 70505
(337) 347-6640
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Wilbert Joseph Levier
Rose Richard Levier

Stephen C. Polito
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
Post Office Box 2900
Lake Charles, Louisiana 70602-2900
(337) 436-9491
COUNSEL FOR DEFENDANT/APPELLEE:
Jeff Davis Bancshares, Inc.

SAVOIE, Judge.

In this case concerning the amendment of building restrictions, the trial court

granted a motion for summary judgment filed by Defendant Jeff Davis Bancshares,

Inc. (JD Bank), affirming the amendment to the restrictions at issue. Plaintiffs,

Wilbert Joseph Levier and Rose Richard Levier, now appeal. For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 3, 1949, Edward Patterson Smiley transferred ownership of a

lot in the Smiley Subdivision to Otis Burton Stander. In the act which transferred

ownership, the building restrictions for the Smiley Subdivision were formed. In

the 1949 Restrictions, Smiley established general and special restrictions for all

lots in the Smiley Subdivision, including a prohibition on commercial use. The

restrictions also allow for amendment, in whole or in part, by a “vote of the

majority of the owners of the lots in the subdivision.”

Lots 13, 14, and 15 of Block F of the Smiley Subdivision are located on

South Union Street. They are zoned by the City of Opelousas as a Neighborhood

Mixed Use District. This type of zoning allows for commercial uses, including

banks and financial institutions.

On May 9, 2016, James Maddock McCarthy, M.D. and the Joan Sybil

Leblanc McCarthy Credit Shelter Trust (sellers) executed a purchase agreement

with JD Bank, wherein JD Bank agreed to buy Lots 13, 14 and 15 of Block F of

the Smiley Subdivision from the sellers. JD Bank planned to build a new bank

branch on the lots. Before the purchase could be finalized, however, JD Bank

needed to confirm that the zoning and building restrictions affecting the property

allowed for the construction of the branch building.

JD Bank needed zoning approval for its signage and drive-through, which

was obtained at an Opelousas City Council meeting on April 12, 2016. The last

step in the process was to amend the 1949 Building Restrictions to allow for

commercial use of the three lots in the Smiley Subdivision. To that end, Tina

Vidrine, a JD Bank employee, went door to door to lot owners in the subdivision

with a written document. She explained the proposed amendment, and the lot

owners had a choice to either reject the amendment or sign the agreement as

evidence of their approval. There are seventy-seven lots in Smiley Subdivision.

The agreement and vote of the owners of 38.5 of the lots were required for an

amendment of the restrictions to be valid. Vidrine ultimately acquired forty-one

signatures. This document, with the signatures, was then duly acknowledged and

filed in the St. Landry Parish Clerk of Court’s Conveyance Records.

JD Bank, having received zoning approval and amendment of the 1949

Restrictions, purchased the lots at issue. On July 13, 2016, the Leviers, lot owners

in Smiley Subdivision, filed a Petition for Declaratory Judgment and For

Injunction against JD Bank, alleging that the amendment to the 1949 Restrictions

was not valid. JD Bank subsequently filed a motion for summary judgment

arguing that the amendment constitutes a “vote” by the majority of the lot owners

as required to amend the building restrictions. After a hearing on the motion, the

trial court ruled in favor of JD Bank, finding:

[T]hat the Amendment to Restrictions recorded on April 1, 2016, in
the St. Landry Parish Clerk of Court’s Conveyance Records, bearing
Act. No. 1139450, constituted a vote as required by the Smiley
Subdvision [sic] Building Restrictions created by the Mortgage Sale
from Edward Patterson Smiley to Otis Burton Stander executed on
December 3, 1949, and recorded in St. Landry Parish Clerk of Court’s
Conveyance Records, Book F-9, Page 43, Act No. 276728, and that,
because a vote occurred with a majority of the owners of the lots
voting in favor of the said amendment, the Amendment to Restrictions

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recorded on April 1, 2016, in St. Landry Parish Clerk of Court
Conveyance Records, bearing Act. No. 1139450, validly amended the
Smiley Subdivision Building Restrictions to allow commercial
development on Lots 13, 14, and 15 of Block F of the Smiley
Subdivision.

The Leviers now appeal.

ASSIGNMENTS OF ERROR

The Leviers contend that:

1) The [trial court] committed reversible error in finding that the
Amendment to Restrictions instrument recorded under Act. No.
1139450 constituted a vote as required by the Smiley Subdivision
Building Restrictions.

2) The [trial court] committed reversible error in finding that the
Amendment to Restrictions validly amended the Smiley
Subdivision Building Restrictions to allow commercial
development of Lots 13, 14, and 15 of Block F of the Smiley
Subdivision.

3) The [trial court] committed reversible error in granting summary
judgment and dismissing the Leviers’ case.

LAW AND DISCUSSION

The appellate standard of review for motions for summary judgment is set

forth as follows:

A motion for summary judgment is a procedural device used
when there is no genuine issue of material fact for all or part of the
relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-
363[,] p. 3 (La.11/29/06), 950 So.2d 544, 546, see La. C.C.P. art.
966. A summary judgment is reviewed on appeal de novo, with the
appellate court using the same criteria that govern the trial court’s
determination of whether summary judgment is
appropriate; i.e. whether there is any genuine issue of material fact,
and whether the movant is entitled to judgment as a matter of
law. Wright v. Louisiana Power & Light, 2006-1181[,] p. 17
(La.3/9/07), 951 So.2d 1058, 1070; King v. Parish National
Bank, 2004-0337[,] p. 7 (La.10/19/04), 885 So.2d 540, 545; Jones v.
Estate of Santiago, 2003-1424[,] p. 5 (La.4/14/04), 870 So.2d 1002,
1006.

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Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83 (footnote

omitted).

Louisiana Civil Code Article 780 (emphasis added) provides:

Building restrictions may be amended, whether such amendment
lessens or increases a restriction, or may terminate or be terminated,
as provided in the act that establishes them. In the absence of such
provision, building restrictions may be amended or terminated for the
whole or a part of the restricted area by agreement of owners
representing more than one-half of the land area affected by the
restrictions, excluding streets and street rights-of-way, if the
restrictions have been in effect for at least fifteen years, or by
agreement of both owners representing two-thirds of the land area
affected and two-thirds of the owners of the land affected by the
restrictions, excluding streets and street rights-of-way, if the
restrictions have been in effect for more than ten years.

In the present case, the act that established the 1949 Restrictions does

include a provision for amendment of the restrictions. General Restrictions

Section 15 (emphasis added) states:

The General Restrictions herein contained shall be binding on
all purchasers, their heirs or assigns, and on all persons claiming
under all purchasers, their heirs or assigns, and any special restrictions
that may be set forth in any deed to any lot or parcel of ground in said
subdivision, shall be binding on the particular purchasers, their heirs
or assigns, and on all persons claiming under them, until January 1,
1975, at which time said restrictions shall be automatically extended
for successive periods of ten years, unless by a vote of the majority
of the owners of the lots in said subdivision it should be agreed to
change the said restrictions in whole or in part.

The building restrictions do not contain a section explaining what constitutes

a vote or how the vote is to be conducted. It is the Leviers’ contention that a vote

to amend the restrictions did not take place. The Leviers argue that the “generally

prevailing meaning of the word ‘vote’ minimally requires some kind of a proposal

put before all potential voters and a specific timeframe in which the vote will

occur.” That was not done in this case. We disagree.

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“The words of a contract must be given their generally prevailing meaning.”

La.Civ.Code art. 2047. In that regard, we turn to the general and ordinary meaning

of the word “vote” which is a “formal expression of opinion or will in response to

a proposed decision” and/or “an indication of approval or disapproval of a

proposal.” Merriam-Webster’s Collegiate Dictionary, 1403 (11th ed. 2004). The

amendment document signed by the lot owner states, “that [she/he] does hereby

approve the Amendment to Restrictions to permit Lots 13, 14 and 15 of Block F to

be used for commercial purposes.” We find this language to be unambiguous.

Signing of the document clearly expresses approval of a proposal, which is the

amendment of the building restrictions.

In addition, we find no authority that requires notice or a hearing on the

matter. The drafters of the 1949 Building Restrictions could have included such

language in the document, but they did not. Such requirements cannot now be read

into the restrictions. We do not find that notice and hearing requirements attach

with the addition of the word “vote.”

Further, JD Bank attached the affidavit of Bruce Gaudin, a title attorney

doing business in St. Landry Parish, Lafayette and Evangeline Parishes. He

drafted the agreement to amend the subdivision restriction, and he avers “[t]hat

using written agreements to amend building restrictions and recording said written

agreement, as was done in this case with the 2016 Amendment, is the standard real

estate practice in St. Landry Parish and the surrounding areas.”

For these reasons, we find that the written document signed by the lot

owners constituted an amendment of the 1949 Building Restrictions, permitting

Lots 13, 14 and 15 of Block F of the Smiley Subdivision to be used for commercial

purposes. The Leviers’ assignments of error are without merit.

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DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All

costs associated with this appeal are assessed to Plaintiffs Wilbert and Rose Levier.

AFFIRMED.

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